Malicious Prosecution

In order to check false accusations of innocent persons, the tort of malicious prosecution came to be recognised. Malicious prosecution means institution of criminal or bankruptcy proceedings against another, or liquidation proceedings against a company, or to procure the arrest and imprisonment of another by means of judicial process civil or criminal, or to cause execution to issue against the property of a judgement debtor, maliciously and without reasonable and probable cause by which that other suffers damage to his fame, person or property, provided that the proceedings terminate in others favour so far as may be possible, Osborne’s C.L. Dictionary, 1976 6h Edition, 3rd Imp, P.212.

Malicious prosecution basically means instituting unsuccessful criminal proceedings against another maliciously and without reasonable and probable cause.

Essentials of malicious prosecution

In an action for malicious prosecution, the plaintiff must prove the following:
(a) That the Plaintiff was prosecuted by the Defendant.
(b) That the prosecution ended in the Plaintiff’s favour.
(c) That the Defendant acted without reasonable and probable cause.
(d) That the Defendant was actuated by malice.

(a) That the Plaintiff was prosecuted by the Defendant

The word prosecution carries a wider meaning and does not merely mean prosecution in criminal court. . “Prosecution’ carries a wider sense and does not mean prosecution in a criminal Court only. It means prosecution which may not be of criminal nature but is such as would cause any slur or odium upon the good name of the plaintiff and an action for damages lies if the other essentials of ‘malicious prosecution’ are made out”.

(b) That the prosecution ended in the Plaintiff’s favour

It is to be noted that prosecution does not commence when a complaint is made to the Police authorities and the Police starts its proceedings. It is incumbent for the plaintiff in a suit for malicious prosecution to prove that the prosecution against him by the Defendant terminated in his favour. The prosecution is said to end in the Plaintiff’s favour when he shows that
(i) He was acquitted by the court on merit or on technical grounds, or
(ii) That his conviction was quashed or set aside by the Appellant court, or
(iii) His prosecution was discontinued or withdrawn by the Defendant, or

(c) That the Defendant acted without reasonable and probable cause

The next condition for the plaintiff to prove the tort of malicious prosecution is that the Defendant prosecuted him without any reasonable and probable cause. Reasonable and probable cause may be defined to mean the reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to  warrant any ordinary, prudent and cautious man into believing that the person charged with the crime was probably guilty of the offence with which he is charged.

Thus, reasonable and probable cause implies honest belief in the guilt of the accused, based upon reasonable grounds. In the case of Girja Prasad Sharma v. Uma Shankar Pathak AIR 1973 MP 79, the Plaintiff Uma Shankar Pathak was an advocate and also a Jana Sangh Leader. Jana Sangh started an agitation due to food scarcity in Panna District. Girja Prasad the Sub Inspector was deputed to control the agitation. He stated that while he was being assaulted, his revolver got fired and the same day he lodged an FIR stating therein that he was assaulted, his wrist watch was snatched and that the Plaintiff Uma Shankar was present at the and was continuously instigating the crowd. The court found that the Complaint was false as at the relevant time, Uma Shankar was not present at the scene but was appearing in a case before the Civil Judge. Girja Prasad was, therefore acting without reasonable and probable cause and trying to use the machinery for an improper purpose of falsely implicating the Plaintiff. And therefore, he was held liable for malicious prosecution.

(d) That the Defendant was actuated by malice

Malice in its ordinary meaning is wish, desire or intention to hurt someone. Malice implies indirect and improper motive.  Malice means the presence of some improper and wrongful motive that is to say, an intent to use the legal process in question or something other than it’s legally appointed or appropriate purpose. It is to be established by inference from circumstances and cannot be proved by direct evidence.In Abdul Majid v. Harbansh Chaube, AIR 1974 ALL 129, the station officer of the Police station had conspired with the Defendants and said that the Plaintiff was involved in a dacoity, and the “Hansauli’ used in the dacoity was recovered from the Plaintiff’s house. The court acquitted the plaintiff on the benefit of doubt. The Plaintiff brought an action against the Defendants. The court observed that the Defendants were actuated by improper and wrongful motive to prosecute the Plaintiff and thus held that the Defendant was liable for malicious prosecution.

It is to be noted that the ultimate acquittal of the Plaintiff does not mean that it was malicious. However, enmity, retaliation, haste, omission to make due and proper enquiries, recklessness, harassment, personal spite, sinister motive, etc are some of the items which are relied upon for proving malice.”


* Team,

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